By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer
2016 Colorado Police May Do A Pat Down Search If You Ask Them For A Courtesy Ride – A Colorado panel of the Colorado Court of Appeals creates new law that may change how the police assist Colorado citizens when they need help – such as a “courtesy ride.”.
The new case – decided in August of 2016 (and subject to appeal) is People v Gow … http://law.justia.com/cases/colorado/court-of-appeals/2016/14ca0921.html
The Old Rule – The Bergdal Rule – The Police MAY NOT Search You – (Pat You Down) Just Because You Ask For Help And Are Placed In Their Squad Car
For many years, Colorado law in the area of police assistance – non- criminal – has been clear. The police may not search you just because they assist you in some way – they must have a constitutional basis to pat you down for weapons: Here is the rule:
..”[l]aw enforcement officers may justifiably contact an unsuspicious person when other legitimate official reasons exist,” “[b]ut during that contact, a protective search additional cause or reason, may search the individual and areas under his control incident to the arrest for a weapon is justified only when the circumstances of an otherwise valid stop provide the officer with a reasonable basis to suspect that the person with whom he is dealing may be armed and dangerous.’”
The case that changed the old rule – People v Gow http://law.justia.com/cases/colorado/court-of-appeals/2016/14ca0921.html
presented the question of whether a police officer could require a citizen who requests assistance require that person to submit to a pat-down search for weapons before the person is allowed to enter the officer’s vehicle?
The New Rule – The Gow Rule The Police MAY Search You – (Pat You Down) Just Because You Ask For Help And Are Placed In Their Squad Car
The case of People v. Gow – discussed in depth below – held as follows:
When a police officer requires a person who has voluntarily sought assistance, but whom the officer has no duty to assist, to undergo a pat-down search as a condition of entering a police vehicle, even when the officer does not have a reasonable, articulable suspicion that the person is armed and dangerous.
What does that mean to you. Say you are stranded on the side of the road in the open country. Weather conditions are dangerously frigid. A police cruiser comes by and you hail the patrol car and ask for a ride that could save your life. The new rule allows, as a condition to the officer providing the ride, for a pat down search of your body. Such a search, after the Gow decision, does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.
The Analysis Under The Fourth Amendment – The Reasoning Underlying The New – Gow – Rule.
How Does The Fourth Amendment Factor In?
The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect individuals against unreasonable searches and seizures.
Thus ANY warrantless search is presumptively invalid under the Fourth Amendment.
“The constitutional test of a warrantless search ultimately is reduced to the question of whether the search was reasonable under all relevant attendant circumstances.” .
In the absence of a consensual search – every search by government authorities must be pursuant to a warrant unless it falls into one of several carefully crafted exceptions.
The Berdahl Rule was that when there is no evidence that any criminal activity has occurred, a pat-down search on a person being placed in a patrol car is never justified on the grounds of officer-safety.
The Dow Court held that the risk to police officers as balanced against an individual’s Fourth Amendment’s rights could find a balance. Here is their ruling:
A protective pat-down search is permissible only when those circumstances reasonably justify the officer’s decision to require or allow the individual to enter the vehicle.
… when an officer has a valid, reasonable basis for placing an individual into a police vehicle that will be occupied by the officer or other persons, the significantly heightened risk of danger to those in the vehicle in the event the individual is armed justifies a pat-down search of the individual for weapons, irrespective of whether the officer has a reasonable, articulable belief that the individual is armed and dangerous.
What The Dow Case Does NOT Say
This is important – when a police officer makes a routine traffic stop – the officer still does not have the right to demand that the motorist enter the police vehicle and thereby submit himself or herself to a pat down search. A police officer cannot use the placement of a traffic suspect in a patrol car and a pat down search as a subterfuge to avoid the limitations of the Fourth Amendment.
The Reasoning Behind The Change In Rule
The Court Of Appeals in their decision tries to strike “the appropriate balance between the critical interest of officer safety and an individual’s right to be free from unreasonable searches and seizures.”
Here is how they reasoned out their decision:
“The Fourth Amendment was surely not intended to stand for the proposition that police officers must either abandon civilians [in need of assistance] or transport them at the risk of personal safety, rather than transport them at reduced risk of personal safety by first subjecting them to a frisk for weapons.
“[An] officer [is] not required to gamble his life by placing [an individual] in [a] patrol car with him without the precaution of a pat down for weapons.”
The “touchstone” of the Fourth Amendment is “always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”
2016 Colorado Police May Do A Pat Down Search If You Ask Them For A Courtesy Ride
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